The Right to Wed

Hendrik Hertzberg writes that, notwithstanding the passage of Proposition 8 in California last month, the attempts to ban same-sex marriage through ballot initiatives have “the feel of a last stand” (The Talk of the Town, December 1st). One often overlooked element is that such initiatives violate the Constitution—specifically, equal protection and privacy. In 1964, Californians overwhelmingly passed a proposition that would amend the state constitution to forbid laws banning race discrimination in housing. Yet the amendment was struck down, first by the California Supreme Court and then by the U.S. Supreme Court, citing a principle established decades earlier by Justice Robert Jackson. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy . . . and to establish them as legal principles to be applied by the Courts,” Jackson wrote, in 1943. “Fundamental rights may not be submitted to vote; they depend on the outcome of no election.” There is no legitimate state interest in denying gay citizens the same rights as their straight counterparts. Proponents of gay marriage in California have been reticent about pressing their cause on the basis of federal constitutional rights (relying instead on the similar state constitutional guarantees, before that charter was amended by Proposition 8), for fear that the case would end up before the U.S. Supreme Court. But what good are rights if they are not vigorously defended?